The state hit back against the National Rifle Association in a new filing late Thursday, saying its lawsuit against Gov. Andrew Cuomo and a state agency is “nothing more than an attempt by the NRA to insert politics into a regulatory insurance violation.”
Adrienne Kerwin, an assistant attorney general leading the state’s defense, said in the brief that the NRA chose to sue the state instead of resolving alleged misconduct through the sale of an illegal insurance product called Carry Guard.
William Brewer III, a partner at Brewer, Attorneys & Counselors in Manhattan and Dallas, is representing the NRA in the matter.
Brewer has said the NRA’s lawsuit is about more than Carry Guard, which provided insurance for legal fees, therapy and other costs associated with someone’s use of a gun. The Department of Financial Services, the state’s insurance regulator, investigated several companies for selling the product in 2017 and ultimately found it to be illegal.
The agency said the Carry Guard product did not meet the state’s minimum liability requirements and “New York state law prohibits insurance coverage to defense costs arising out of a crime.”
The NRA said in its lawsuit against the state that DFS Superintendent Maria Vullo and Cuomo conspired to coerce banks and insurers to stop doing business with the association entirely. In one press release, for example, Vullo called on those companies to cut ties with the gun lobby.
“DFS urges all insurance companies and banks doing business in New York to join the companies that have already discontinued their arrangements with the NRA, and to take prompt actions to manage these risks and promote public health and safety,” Vullo said.
A central claim to the NRA’s lawsuit is that state actions, like that release, could cause financial hardship that would consequently stifle their ability to advocate for gun owners. They argue that infringes on their free speech rights.
The state had three arguments against the NRA’s First Amendment claims in its new brief.
The first cited case law in which federal courts have determined that government speech, such as Vullo’s quote in the release, are protected from First Amendment claims, according to the state.
One is the case of Penthouse v. Meese, a 1991 decision from the U.S. Court of Appeals for the D.C. Circuit. In that case, a unit within the U.S. Attorney General’s Office wrote in letters to distributors of Penthouse Magazine that they could be publicly named for selling the magazine, which they labeled as pornography. Penthouse sued the government because major distributors stopped selling their magazine after the letter. The D.C. Circuit dismissed the company’s free speech claims, saying the letter was government speech and did not implicate the First Amendment.
The state said in its brief that the same idea can be applied to its actions.
The NRA has focused much of its case on a letter sent from Vullo to insurers and banks in April warning them of the “reputational risks” of doing business with the association. The NRA argued that the letter could be perceived as a threat to those companies to either cut ties with the gun lobby group or face scrutiny from the state.
The state argued in its brief, however, that not only is the letter protected government speech, as seen in Penthouse, but it also contained no threats of retaliatory action. Instead, the state argued, the letter was intended to warn those companies that they could lose business if they were involved with the NRA. It was not intended to threaten or coerce the companies, the state said.
“There are no actual or implied threats of coercion, nor any warnings, in the DFS guidance letters,” the brief said. “The only reasonable conclusion that may be drawn from an objective reading of the guidance letters is that they further the legitimate DFS objective of ensuring that insurers and financial institutions providing services to New York state residents on an ongoing basis, consider matters that may affect a company’s corporate reputation and, in turn, its financial health.”
The state’s third argument against the NRA’s First Amendment claims actually contradicts part of the gun lobby’s lawsuit.
Part of the NRA’s First Amendment claim is based on consent orders between the state and two insurers that sold Carry Guard. The consent orders mandated those companies to stop selling products affiliated with the NRA altogether. The NRA has said that part of the orders went outside of the scope of the investigation by DFS and was an arbitrary result.
The state claimed in its brief that there was a reason behind the blanket requirement. It said other products marketed by the NRA and sold by the insurers also violated parts of the state’s insurance laws, and therefore were justified in ending. The NRA has disputed that claim.
“Although the NRA’s Carry Guard program posed the greatest threat to public safety in New York, contrary to the NRA’s argument in its opposition memorandum, the sale of the NRA’s affinity programs violated multiple Insurance Laws and were the appropriate subject of sanction by DFS,” the state said. “There is no First Amendment exception to a violation of law.”
Brewer said in a statement after the brief was filed that, despite the state’s argument, he still feels confident that Cuomo and Vullo’s actions represent viewpoint discrimination.
“Defendants’ filing abandons virtually all of their arguments—except government speech,” Brewer said. “And, on this pivotal constitutional issue, the state’s arguments fall short. The government is not free to use the coercive tactics they chose here. That is what the NRA’s allegations depict, and what discovery will show.”
The state’s motion to dismiss the lawsuit is set to be heard on Sept. 10 in Albany.